Dismissed

Mohd. Tahir Hussain v. State of U.P.

Allahabad HC7 Sept 2021CRLA/6875/2007

Case brief

AI extract

What is this about?

The High Court examined a criminal appeal challenging a conviction for murder under Section 302 IPC. Relying on principles from Sharad Birdhichand Sarda, the court held that the chain of circumstantial evidence, including the extra-judicial confession and medical report ruling out suicide, was complete. The appeal was dismissed, and the original conviction and sentence were affirmed.

What did the court decide?

The criminal appeal was dismissed, and the judgment and order of conviction and sentence passed by the Sessions Judge were affirmed.

Mohd. Tahir Hussain Vs State of U.P. — Murder and Culpable Homicide | Allahabad HC (2021)

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Reserved on :- 20.07.2021 Delivered on :- 07.09.2021

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Court No. - 48

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Case :- CRIMINAL APPEAL No. - 6875 of 2007

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Appellant :- Mohd. Tahir Hussain Respondent :- State of U.P.

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Counsel for Appellant :- Deepak Kaushik,A.C.Srivastava,A.K. Mishra,A.M.Tripathi,Ashok Kumar Mishra,Brijesh Sahai,D.B. Mishra,Deepak Kumar,H.C. Mishra,K Kumartripathi,K. Kumar Tripathi,Kamlesh Shukla,Madhur Prasad,N. Pandey,Rajiv Kumar,S. Alim Shah,S.M.A. Firdausi,Satish Trivedi,V.K.Jaiswal,V.P. Srivastava,Vinod Tripathi Counsel for Respondent :- Govt. Advocate

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Hon'ble Anjani Kumar Mishra,J. Hon'ble Deepak Verma,J.

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(Delivered by Hon. Deepak Verma,J.)

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Appellant, Mohd. Tahir Hussain has assailed the judgment and order of conviction dated 26.9.2007 passed by the Sessions Judge, District Meerut in S.T. No.1122 of 2002 (Case No.326 of 2002) whereby he was held guilty of offence under Section 302 I.P.C. and sentenced to undergo imprisonment for life with fine of Rs.5000/-.

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Heard Sri A.C. Srivastava and Sri Nitin Srivastava, learned counsels for the appellant, Sri A.K. Ray and Sri D.K. Singh, learned A.G.A. and perused the record.

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The first information report of the incident was lodged on 8.7.2002 by the brother of the deceased Mohd. Rahis (P.W.1) against the appellant alleging that marriage of his sister Ruksana was solemnized

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with appellant Mohd. Tahir 8-9 years back but after 2 to 3 years of their marriage, relations became tense between the husband and wife. When he went to meet his sister on 6.7.2002, he found that his sister was lying dead and there was a mark of rope on her neck. He believed that murder had been committed by her-in-laws/appellant. The F.I.R. was registered under Section 302 I.P.C. as Case Crime No.326 of 2002 and after investigation charge sheet had been submitted under Section 302 I.P.C. This fact has come into light that before lodging the F.I.R., Wali Mohd, informant’s maternal uncle (Mama) moved an application at P.S. T.P. Nagar, District Meerut alleging that his niece Smt. Ruksana had died and dead body is lying on her house and mark of rope is appearing around her neck.

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During course of trial prosecution examined eight witnesses, namely, Mohd. Rahis (P.W. 1),Vali Mohd. (P.W.2), Khalil Ahmad (P.W.3), S.I., Mahesh Singh (P.W.4), Head Constable, Mool Chand (P.W. 5), Ishtiaq (P.W. 6), P.K. Bansal (P.W.7)who examined ante mortem injuries of the deceased, Aftab (P.W. 8), who is hostile witness in this case.

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Accused appellant Mohd. Tahir, in his statement recorded under Section 313 Cr.P.C., has denied his involvement in the present case and has taken defence that he was not present at the time of incident. The F.I.R. was registered with a delay of two days during which period, he was pressurized and threatened by the informant of false implication if he did not surrender his property in favour of informant. He denied that there was tension between wife and husband and also denied his illicit relationship with some another woman.

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It is admitted fact that victim died in the house of the accused appellant and in mysterious circumstances, Dr. P.K. Bansal (P.W. 7) conducted postmortem of the deceased and found following ante mortem injuries:

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Legature mark all around the lower parts of the neck size 31x1cm. Underneath tissue Ecehymosed.

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Abrasion 2x1 cm. and 1x1 cm. on the left side neck front and lateral.

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Dr. P.K. Bansal (P.W.7) opined that deceased died due to asphyxia as a result of strangulation and viscera was preserved. Inquest report has been prepared and it has come out that deceased Ruksana died due to injuries caused around her neck and in photo lash, the injuries are clear over the body of the deceased. It is clear from the inquest report that deceased was about 6-7 months pregnant. Both her eyes were half open and tongue was in between both the jaws. The postmortem was conducted on the same day which indicates that the expected time of death is about one and a half day and cause of death was asphyxia on account of strangulation.

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P.W. 1 Mohd. Rahis is brother of deceased Ruksana, who in his examination-in-chief has stated that marriage of his sister was solemnized 8 to 9 years ago with accused appellant Mohd. Tahir. Two years after marriage, a dispute arose between the deceased and the appellant on account of his illicit relationship with another woman. He deposed that when he went to offer namaz at 5 am. in mosque, he saw that appellant Mohd. Tahir was looking perturbed. On enquiry, the appellant informed that he is going to Muzaffarnagar due to urgent work and after saying so, he went away. He further deposed that after

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offering namaz, he went to visit his sister and found that door was open and his sister was lying dead. Thereafter, he informed his parents and maternal uncle, Vali Mohd. (P.W.2) about the incident. His maternal uncle, P.W. 2 gave information to the concerned police station. He further deposed that P.W. 2, Vali Mohd. and his father informed him that appellant Mohd. Tahir continuously contacted them over telephone and confessed that he committed a mistake and killed his wife Ruksana. Thereafter, he lodged the F.I.R. against the accused appellant Mohd. Tahir after two days.

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Mohd. Rahis (P.W. 1) in his cross- examination deposed that his father and father of the appellant are real brothers and family of the P.W.1 and parents live in the ancestral house. He next deposed that accused and his family were living separately in their own house. He further stated in his cross examination that appellant was running business of selling second hand tyres. The house of the accused is situated in chowk and the distance between his office to house is about 200 to 250 yards. He denied this situation that accused on account of his business resides outside his house for about two to three days. The deceased had three children and these children used to reside with their parents. He next deposed that there is a common wall between the house of the sister and the accused and the mosque in which he used to go for offering namaz. He also denied that there is no door behind the house. He admitted this fact that if he moves outside from the door, door opens towards chowk side then mosque will not come on the way. He next deposed that his father and maternal uncle were aware of the confession of the accused appellant and on coming to know this fact, he lodged the F.I.R. He denied the suggestion that no telephone call was ever received by his father and maternal uncle. In

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his cross examination he could not give details about the woman with whom the accused had illicit relationship.

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P.W. 2, Vali Mohd. is maternal uncle of deceased Ruksana. In his examination-in-chief he has deposed that Ruksana was happy with married life but after 2-3 years, accused-appellant developed illicit relationship with some another woman. In these circumstances, they had tough relation and many times he tried to solve the matter amicably. After getting information from the appellant Mohd. Tahir about the murder of deceased Ruksana, he informed the police about the incident. He deposed that inquest was done before him and he saw the ligature mark over the neck of the deceased and also admitted that accused had made telephonic call regarding his confession. P.W. 2 in his cross examination admitted that murder had not been committed in his presence and he further admits that he had no knowledge about the woman with whom the accused had illicit relationship but he was informed about this relation by the deceased Ruksana. He next deposed that children of the deceased used to reside with their maternal grandparents. In his cross examination, he admitted that he informed the police regarding death of Ruksana orally and denied the suggestion that he wrote written report to the police station. He also stated that he had no telephone connection but he received telephonic calls at 10 am., 2 pm., 5 pm. and 5:30 pm in the house of Shakeel (contractor), neighbour to the accused.

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P.W. 3, Khalil Ahmad is father of the deceased. In his examination-in-chief he submits that marriage of his daughter was solemnized with appellant 8 to 9 years ago. They lived peacefully 2 to 3 years. Thereafter, on account of illicit relationship of appellant with

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a woman, dispute arose between them and appellant often made physical assault over his daughter. He next deposed that accused Mohd Tahir confessed murdering his daughter Ruksana, on telephone. P.W. 3, Khalil Ahmad in his cross examination could not disclose about the woman with whom the accused had illicit relationship. He deposed that after marriage of four years, his daughter, Ruksana made complaint regarding illegal relationship of her husband but he could not take any action as the appellant’s father is his real brother. He further made statement that he disclosed the confession made by the accused-appellant Tahir, to the investigating officer when his statement was recorded. He denied the suggestion that he had strained relationship with his brother (father of the accused). He also deposed that house in which he is residing, is in the name of his brother and his brother has never made request to vacate the same nor any dispute arose between them; the suggestion that his brother told him to vacate the house due to which the appellant has been falsely implicated in the present case, is totally incorrect.

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P.W.4, S.I. Mahesh Singh deposed that P.W.2, Vali Mohd. gave written information that his niece/deceased Ruksana had committed suicide. Written information was entered in G.D. (General Diary) at 8:30 am. Inquest was done by Munish Kumar Sharma thereafter postmortem was conducted on 08.07.2002. The F.I.R. was lodged by the brother of deceased alleging that his sister was strangulated by her husband (accused) which was registered under Section 302 I.P.C. The investigation was done by him thereafter, charge sheet had been submitted. Accused Tahir was arrested on 11.07.2002 and rope was recovered from his possession. He has proved recovery memo (Fard

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Baramadgi) as well as charge sheet. In his cross examination, he stated that information related to some facts was not disclosed by informant to the I.O. He denied the fact that witnesses had not informed that they received telephone call from the accused. He further stated that he did not investigate that whether informant having telephone connection or not. He further averred that it is wrong to say that no recovery of rope was made from the possession of accused appellant. P.W. 4 has deposed that I.O. has recorded statement on recovery memo that in presence of P.W. 6, Ishtiyaq, rope was recovered from the possession of accused but they have denied this fact.

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P.W. 5 is Head Constable. He has proved chik F.I.R. in G.D. 14. P.W. 6 has turned hostile.

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P.W. 7, Dr. P.K. Bansal prepared autopsy report of the deceased. The age of the deceased was determined as 28 years and it has been ascertained that she was 25 to 28 weeks pregnant. P.W. 7 found that her lungs, wind pipe, liver and kidney were congested. In his cross examination, P.W. 7 submitted that death is possible on 5-6.07.2002 at 11-12 pm. at night. Rigor mortis starts after six hours of death but in summer it starts after 6 to 8 hours. Thereafter in 6 hours, it covers the whole body and remains over the body for 6 to 10 hours. 24 hours after rigor passes, decomposition starts. He further deposed that it is wrong to say that strangulation could not be carried out by the recovered rope.

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P.W.8, Aftab has turned hostile. The Investigating officer prepared recovery memo in his presence but he denied this fact.

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The accused appellant, Mohd. Tahir in his statement recorded under Section 313 Cr.P.C. has denied his involvement in the present case and has pleaded his alibi. The defence raised by the accused has not been proved by any defence witness and is also not proved from cross examination of prosecution witnesses.

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After hearing counsel for the parties, the trial court convicted and sentenced the accused appellant. Aggrieved by the order of conviction and sentence, the appellant has preferred present appeal.

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Learned counsel for the appellant submits that conviction of the appellant is improper, illegal and against the weight of evidence on record. The F.I.R. is delayed with no plausible explanation. The appellant in no way related with the case. There is no eye witness against him except that he was seen coming out from his house by P.W. 1, Mohd. Rahis. According to counsel for the appellant, recovery of rope from the possession of the appellant has not been supported by any evidence and eye witness. The order of the court below impugned in this appeal is also challenged on the ground that appellant was not present in the house at the time of incident. The accused appellant is innocent and has not committed any offence, as such, punishment awarded to him is too severe and harsh.

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The counsel for the appellant next argued that all the prosecution witnesses are relatives and are interested witnesses. Appellant was away from his house in connection to his business. Prosecution witnesses are chance witnesses. Case against the appellant is based on circumstantial evidence as no direct evidence is available on record.

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He argued that according to prosecution story, only evidence is that appellant was seen coming out from his house and extra judicial confession made to P.W. 2, Vali Mohd. and P.W.3, Khalil Ahmad over telephone. There is motive for false implication as the appellant did not accede to the demand of informant. He has been falsely implicated.

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On the other hand, Sri Ajit Ray, learned A.G.A. has submitted that the appellant and deceased/victim were wife and husband and the appellant had illicit relationship with some other woman. He next argued that although, there are some discrepancies between the version of the F.I.R. and the statement of witnesses P.W. 1, Mohd. Rahis, P.W. 2. Vali Mohd. and P.W. 3, Khalil Ahmad but they are minor. He next argued that delay has been properly explained and discrepancies in statements, do not affect the root of the case. He next submitted that no explanation has been given from the side of the appellant as to how his wife died. On perusal of statement of P.W. 1, P.W. 2 and P.W. 3, it appears that they had good relationship with the appellant, hence, there was no question of false implication of the appellant in the present case. It has been argued that motive may not appear on the surface in every case as it is locked in the mind and heart of the accused, but it cannot be denied that chain of circumstantial evidence in this case leads to the conclusion that it was none other than the accused appellant who had committed the gruesome murder of his wife. He contends that all the witnesses have categorically established the place of occurrence namely the house of the appellant. Ocular evidence is supported by the medical examination/postmortem report and duration of time of death was

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explained by the doctor. He, therefore, submits that prosecution story has been proved beyond reasonable doubt and does not in any way establish the absence or false implication of the appellant. He further contends that appellant was very much present in the house and committed murder of his wife. There is no scope for even reduction in the sentence as claimed by the appellant. The appellant was found guilty and has appropriately been sentenced as the guilt was established. He, therefore, urged that this Court may not take any lenient view on account of the alleged lapse in investigation or the minor discrepancies as alleged by the learned counsel for the appellant in the statement of the prosecution witnesses.

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After hearing counsel for the parties, and on perusal of record, we find that appellant has been convicted on appraisal of fact on circumstantial evidence. There is no direct evidence against the accused appellant nor any ocular witness who may have seen the deceased, Ruksana being done away by the appellant. We have to test as to whether all the links in the chain of circumstantial evidence are complete to unerringly point the fingers of guilt at the accused person and no one else.

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In the case of Sharad Birdhichand Sarda vs. State of Maharashtra, (1984) 4 SCC 116, a Bench of three Judges of Hon’ble Supreme Court, after analyzing various aspects, laid down certain cardinal principles for conviction on the basis of circumstantial evidence. The Court laid down the following conditions must be fulfilled before a case against an accused can be said to be fully established:

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“153…..(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. …. … (2) the facts so established should be

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consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty, (3) the circumstances should be of a conclusive nature and tendency, (4) they should exclude every possible hypothesis except the one to be proved, and (5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.

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These five golden principles, if we may say so, constitute the panchsheel of the proof of a case based on circumstantial evidence.”

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It is clear that even in the absence of eye-witness, if various circumstances relied on by the prosecution in relation to the guilt are fully established beyond, doubt, the Court is free to award conviction. Further, the chain of events must be complete in order to sustain the conviction on the basis of circumstantial evidence.

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Counsel for the appellant firstly argued that there is delay in lodging the F.I.R. which is not explained properly. It is true that incident occurred on 06.07.2002 and F.I.R. was lodged on 08.07.2002 i.e. after two days of the incident. P.W. 1 Rahis (brother of the deceased), who had lodged the F.I.R. against the appellant accused in his evidence, has deposed that when he saw deceased Ruksana was lying dead in the house, he informed his father (P.W.3 Khalil Ahmad) and maternal uncle P.W. 2 (Vali Mohd.). Vali Mohd, on the same day, informed the police station regarding death of Ruksana. It has been averred that on account of extra judicial confession before P.W. 2 and P.W. 3, the informant was confident that Ruksana had been murdered by the appellant. In such circumstances, the prosecution case cannot

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be rejected merely on the ground of delay since P.W. 1 informant has reasonably explained the reason for the delay.

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Counsel for the appellant next argued that statement of P.W. 1, Rahis, P.W. 2, Vali Mohd and P.W. 3 Khalil Ahmad having discrepancies and P.W. 6 and P.W. 8 have turned hostile who are eye witness of recovery of rope from the possession of the accused. Minor discrepancies in the statement of P.W. 1, P.W. 2 and P.W. 3, cannot exonerate the accused appellant from the burden of proving the fact especially which was within his knowledge.

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Deceased was wife of the accused appellant and she was living with her husband separately from her-in-laws. The burden of proof as to how she died in the house of appellant, is upon him. P.W. 1, Mohd. Rahis has deposed that when he was going to offer namaz, he saw that appellant was in perturbed condition. In such a scenario, it may be presumed that appellant accused was last seen by P.W. 1, Rahis and in this situation burden was upon him to prove how his wife Ruksana has been murdered. Since the respondents failed to do so, it must be held that he failed to discharge the burden cast upon him by Section 106 of the Indian Evidence Act, 1872.

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While considering the case of circumstantial evidence, motive also assumes significance for the reason that the absence of motive would put the Court on its guard and cause it to scrutinize each piece of evidence closely to ensure that suspicion, omission or conjecture do not take the place of proof.

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In the present case, the prosecution has demonstrated that when P.W. 1, Mohd. Rahis(informant) was going to offer namaz, he saw the accused coming out from his house in disturbed state. On making query, he told him that he was going to Muzaffar Nagar and when P.W. 1(Mohd. Rahis) went to the house of his sister after offering namaz, he found his sister Ruksana dead. P.W. 1, Mohd. Rahis informed his father (P.W.3 Khalil Ahmad), and maternal uncle (P.W.2, Vali Mohd.) regarding death of his sister Ruksana. P.W. 2, Vali Mohd. informed the police station about the death of deceased. On information of Vali Mohd., P.W. 2, investigating officer took action and prepared inquest and sent the dead-body for postmortem on 06.07.2002. The informant got information from Vali Mohd., P.W. 2 and his father, P.W. 3 that accused appellant has approached them on telephone and made confession regarding murder of his sister Ruksana. He lodged the F.I.R. against the appellant. Postmortem report fully supports the version of prosecution witnesses. As per statement of P.W. 1 Mohd. Rahis, the accused appellant did not inform the police regarding death of his wife. Accused appellant took the plea of alibi but he did not produce any witness or evidence regarding his plea. As per medical report deceased had pregnancy of 7 months (25 to 28 weeks). The accused appellant is accused of causing double murder.

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It is settled principle of criminal prosecution that extra judicial confession is a weak type of evidence and requires appreciation with a great deal of care and cautious. Extra judicial confession must be established to be true and voluntary and that too in a fit state of mind. The words of the witness must be clear, unambiguous and should

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completely convey that accused is perpetrator of the crime. Extra judicial confession can be accepted if it passes the test of credibility and inspires confidence. The Court should find out whether there are other cogent circumstances on record to support it. If extra judicial confession is surrounded by suspicious circumstances and comes from the mouth of witnesses who appear to be biased or inimical to the accused or in respect of whom it is brought out which may tend to indicate that they may have a motive of attributing an untruthful statement to the accused. In such a situation needless to say, its credibility becomes doubtful and accountability loses its importance. 31. P.W. 2, Vali Mohd. in his cross examination has deposed that he received telephone of the accused appellant next day from the date of occurrence. He further admitted this fact that there is no telephone at his house but disclosed that telephone call was received by him in the house of Shakil who is contractor and accused is residing nearby his house.

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P.W.3, Khalil Ahmad, who is the father of the deceased has deposed that appellant also confessed on telephone about murder of his wife Ruksana. Evidence of these witnesses is not doubtful and in cross examination nothing has come which may belie the testimony.

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The accused appellant failed to offer any explanation as to how deceased died inside the house where both of them were living together. Nothing has been stated in that aspect in the appellant’s statement. Rather, a plea has been taken that he was out of the station and a pressure was made from the informant to vacate the house. In this case, there is no eye witness who had seen the accused appellant committing murder of deceased Ruksana. The case is based on

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circumstantial evidence. Prosecution has shown motive of the occurrence as accused appellant had illicit relation with another woman. There is extra judicial confession of the accused before the witnesses P.W.2, Vali Mohd. and P.W. 3 Khalil Ahmad. Deceased died in mysterious circumstances and she was strangulated. The investigating officer recovered rope from the possession of the appellant which was used in committing the murder. P.W. 2, Vali Mohd. gave prompt application about the murder of the deceased at the police station. P.W. 1 Mohd. Rahis saw the accused appellant coming out from the house where the deadbody was found. Moreover, after examination of medical report as well as post mortem report, it is clear that there is no gap in the ligature mark on the neck of the deceased, which gap is always found in the case of a suicidal death by hanging. The death is, therefore, clearly homicidal. The accused appellant did not inform the police or any other person about the death of his wife and kept silent. Moreover, he fled away from the place of occurrence. The accused could not explain the circumstances under which his wife died. These are the chain of events which connect the accused to the murder of his wife.

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In our opinion, the chain is complete, therefore, from the evidence on record, we are of the considered view that guilt of the accused is proved beyond doubt as the basis of circumstantial evidence adduced in the case. The appellant has failed to make out any case which may create a reasonable doubt in our mind to the effect that the appellant had not committed the murder or that he has been falsely implicated or that incident has not taken place in the manner stated by the prosecution.

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Accordingly, criminal appeal is dismissed . The judgment and order of conviction dated 26.9.2007 passed by the Sessions Judge, District Meerut in S.T. No.1122 of 2002 (Case No.326 of 2002) is hereby affirmed.

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Let a copy of this judgment be certified to the concerned court through Sessions Judge, Meerut for immediate compliance within a fortnight. The concerned court will thereafter report the compliance of this judgment to this Court within a month. Order Date :- 07.09.2021 Meenu

Mohd. Tahir Hussain v. State of U.P.

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What is this about?

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Mohd. Tahir Hussain v. State of U.P.

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